February 6, 2012

The Eleventh Circuit has a very lengthy opinion today in US v. McGarity, No. 09-12070 (11th Cir. Feb. 6, 2012) (available here), which eventually gets around to affirming life sentences given to participants in a massive kiddie porn ring. Here is the literary start to the opinion:

If “[a]ll the world’s a stage” as Shakespeare wrote, this case demonstrates just how much the dimensions of that stage are shrinking with the advent of the internet, at least in regards to child pornography. We are concerned here with the fruits of a cooperative, multi-national criminal investigation directed at tracking a sprawling international child pornography ring, comprised of as many as 64 known individuals sharing more than 400,000 images and 1,000 videos of child pornography across at least six countries. Ultimately, a joint task force arrested fourteen members of the ring and charged them with offenses relating to child pornography, although we have before us only the appeals of the following seven defendants...

This opinion would not be all that blog-worthy but for a lengthy discussion of all the issues surrounding child porn restitution awards under federal law which start on page 97 of the opinion. Here is a key paragraph from that discussion:

[W]e make two findings here: 1) we affirm our holding in McDaniel that end-user defendants may proximately cause injuries to the victims of sexual child abuse; and 2) for proximate cause to exist, there must be a causal connection between the actions of the end-user and the harm suffered by the victim. The first finding has by now been adequately discussed. As to the second finding, any other result would undermine the express wording of § 2259. Proximate cause is required by the specific language of the statute. Since the role of the judiciary is to “apply the text, not to improve upon it,” Pavelic & LeFlore v. Marvel Entertainment Group, 493 U.S. 120, 126 (1989), we apply the statute as written, with its requirement of proximate cause. Any other result would turn 108 restitution for possession of child pornography into strict liability. We, like most of our sister circuits to consider the issue, decline such an interpretation.

This brings up another lawyer fiction from Medieval times, the chain of causation, and proximate cause. Those do not exist in nature. If the chain of causation existed in real life, it would lead back to the Big Bang origin of the universe 14 billion years ago. You cannot remedy this wrong with fictional beliefs. Understanding must be reality based. Such understanding has reduced airline crashes to nearly zero.

Assume child porn victimization is a catastrophe for the child. Catastrophes happen when factors cluster together in a place and time. The subtraction of any single factor among a dozen may prevent the entire catastrophe. There is no chain, but a cluster. There is no proximate cause but twelve on average. Without investigation of this case, one can imagine the following. Parents of child are addicts needing money. They have no feelings except for what they want for themselves. They know a child porn producer. They have an attractive young daughter. Her character is compliant, and she is too slow witted to resist or to report the victimization to the school or other authorities. Both parents are in on it, because there no secrets possible within families, nor even within the trailer court. Recording technology has eliminated the need to process the film at a lab with a duty to report criminal depictions. She is not the first, and this business is maintained by police bribes. Child porn laws have made child porn expensive and lucrative, maintaining a federal price support by draconian enforcement. Another federal subsidy comes in the form of massive credit card purchases by federal enforcement agencies. They are the biggest customer of child porn in the world. The business would wither without their purchases. A genetic predisposition exists in the downloader. He is impulsive and immature from his upbringing, so he cannot control his illegal impulses. The authorities repeatedly traumatize the victim by lurid descriptions of what is being done with her recording, each time one of hundrds or thousands of downloaders is caught. Or she has the unresponsive character of her parents, and doesn't care, just wants money. His defense lawyer is a traitor to his client or too stupid. Fails to file cross claims against all the above contributors to the victimization. To deter them.

“Contemporary policies concerning crime and punishment are the harshest in American history and of any Western country.” Michael Tonry, The Handbook of Crime And Punishment (Oxford Press 1998) paperback ed. at page 3

Posted by: Michael R. Levine | Feb 7, 2012 12:39:25 PM

George (Feb 6, 2012 8:17:58 PM):

The "4,600 U.S. children" of which you speak must not really have been injured or we would all at least be speaking about creating a Registry for the people responsible for it. That, or I suppose those people are not dangerous like the people who might try to groom your children might be. I mean personally, I would much rather have a neighbor who will point a gun at my children than someone who might buy them gifts in an attempt to get close enough to them to molest them some day in the future (I guess some day when they've become much more stupid).

So, Registry Mongers, where are the rest of the Registries? When does your criminal immorality end? We are waiting but losing patience with your crimes.

Posted by: FRegistryTerrorists | Feb 8, 2012 12:48:50 PM

FRT, I would support the creation of a registry for convicted child abusers as well as similar prohibitions on access to children. Physical abuse of children is just as damaging as sexual abuse and there is a similar interest to protect children.

As far as the life sentence here, the court's opinion was vague, but it appears that at least one of the defendants commited actual abuse and forwarded images of abuse to other members of the ring - and at least two others committed contact sexual offenses. If it is true that the ring included actual creation of images, the life sentence is appropriate. And of course, with a life sentence they never have to worry about being on the registry - so everybody should be happy :)

Erika :)

Posted by: virginia | Feb 9, 2012 10:36:33 AM

virginia (Feb 9, 2012 10:36:33 AM):

Okay, so we understand you support nanny, big government. Can't have enough laws, right? I just hope you pay more than your fair share of taxes.

Are we only concerned about putting children in danger? We aren't worried about women? Certainly not men? Fact is, if the SEX OFFENDER Registries are worth anything, then there are no excuses for not Registering everyone who may be a danger to people they encounter. So let's get on with it. We can put them all on one Registry or a hundred, I don't care. Until it is done, this will continue to be an immoral witch hunt.

And just FYI, there can be all the "similar prohibitions on access to children" that you like, just don't delude yourself that people listed on the nanny Registries don't have all the access to children that they want. As I've said many times on this forum, I spend a lot of time around children just because the Registries exist and it's the right thing to do. I have proven many, many times that a listed person can form close relationships with people who never know that they are listed and never will. And of course, those people can have children or not. Doesn't matter.

You see, the Registries don't do anything except harass and violate the vast majority of the people on them who aren't doing anything but living and never will. They do less than nothing to hinder the rest of them from committing any crimes that they would like. In fact, the Registries greatly encourage and promote them to commit crimes.

Facts, facts. It is good to try to reduce sexual offending. But the Registries are a worse-than-worthless tool for it.

Posted by: FRegistryTerrorists | Feb 9, 2012 1:09:54 PM

people on the sex offender registry include rapists who have attacked women and therefore should be considered threats to the safety of women.

To really protect women, there should also be a domestic violence registry which registers wife beaters.

Erika :)

Posted by: virginia | Feb 9, 2012 2:26:23 PM

FRT, since you like icky perv(ette)s so much, would you hire this woman as a babysitter?

Needless to say, the sentence should be LWOP for her crimes and she should never be allowed near another child in her life even in the prison evironment!

Erika :)

Posted by: virginia | Feb 10, 2012 1:49:25 PM

I see cherry picking again to re-enforce general misconceptions...not all on the registry conform to that extreme example and that's the point.

Posted by: comment | Feb 10, 2012 5:05:47 PM

I would like to see a Registry of people who cause harm to children by putting their non-violdent first offender parents on the sex offender registry.
These children are prohibited from visiting many state parks because their parent can not enter, they have been prevented from living within close distances to schools because of the stupidity of SORNA, their parents can not step foot onto the school grounds to have parent teacher conferences and the list goes on.

Posted by: JS | Feb 10, 2012 10:13:51 PM

comment, its actually your side which cherry picks exceptional cases - namely sexting teenagers or 18 year olds who have consensual sex with 15 year old girls - to try to hide the true nature of people on the sex offender registry.

Most everyone on the sex offender registry has committed violent contact offenses against children or forcible sex offenses against adults.

The only thing which makes that case exceptional is that it involved a mother who was raping her child and not the more common case where it was the father or stepfather. In fact, had her case not involved the man bites dog aspect of a mother raping her daughter, it is doubtful it would have even gotten press coverage in a large city even being a horrific case. Had it just been the usual case of the stepfather repeatedly raping his stepdaughter those cases are so common that they don't even get news coverage anymore - and no one would raise an eyebrow if due to wanting to spare the stepdaughter from having to testify and the difficulty of a child witness to testify as to events which happened over time, the multiple rape counts are reduced to a signle count of "Aggravated Sexual Battery" or "Object Sexual Penetration" or "Forcible Sodomy."

While that icky pervette might be an exceptionally bad mother, she's all too typical among sex offenders.

Erika :)

Posted by: virginia | Feb 11, 2012 8:30:45 AM

virgina, Erika, whatever, I didn't read the opinion and thought it was a trading ring. I was talking about possession.

For the sake of clarity re to sex crimes as violence, it can be difficult to tell by the registry because in some jurisdictions any touch of a child can be child molestation which of course requires registration.

So maybe it depends on what you mean by "violent contact offenses against children" since any touching can be sufficient.

Posted by: George | Feb 11, 2012 3:30:05 PM

lol how true george and in even more cases...even charges with NO TOUCHING can be consdiered a VIOLENT FELONY! heck some can be considered that when the crime didn't even involve a REAL PERSON or a REAL VICTIM!

Posted by: rodsmith | Feb 12, 2012 12:34:41 AM

rodsmith, sometimes it takes a great deal of button pushing to pull vigilantes out of the assumption closet. How long did virgina/Erika rely on this premise? An asses metaphor comes to mind.

What's more, since this type of touching can be the same type of touching that virgina/Erika does with children, the difference, a matter of intent, could often rest on confessions. As I'm researching other false confessions now, that method could be replete with error in many of in these cases.

Posted by: George | Feb 12, 2012 9:02:47 PM

George, there is a big difference between "any touching" and "any touching with lewd intent." In most cases - e.g. the one in the case you cited, finding lewd intent will be fairly obvious - there you had a stranger grab a 13 year old girl and try to drag her off into the woods within an hour after he grabbed a different 13 year old girl and tried to kiss her. Strangers normally do not grab 13 year old girls and the lewd intent is obvious from the situation. And of course, to be grabbed and dragged off by some strange guy would be traumatic for a 13 year old girl. In other cases, lewd intent will be obvious from the act - if an adult is engaging in prolonged rubbing of a girl's vaginal area - there is no innocent explanation for why an adult would be engaging in prolonged rubbing of a girl's vaginal area.

California's law is much different from other states laws - Virginia limits the crime of Aggravated Sexual Battery to contact with the sexual organs of a child under the age of 13 with lavicious intent or intent to harass, humiliate, etc. In fact, the case you linked noted that California's law is so different from other states that an out of state conviction may not suffice to enhance sentencing (incidentially, trying to use a case involving a man who molested multiple little girls on numerous occasions to prove that icky pervs are not dangerous is a bad strategy - what you linked actually proves my point).

As for rodsmith's point - the child porn consumers and people caught talking to undercover cops posing as 15 year old girls are not classified as violent sex offenders - only people who commit actual contact offenses are considered violent.

Erika :)

Posted by: virginia | Feb 13, 2012 6:57:08 AM

virgina/Erika, where is your evidence that most are violent or are you just making it up?

Even if so, since the you use violence as the reason to have the registry, what is the violent recidivism rate: It is very low.

"The main problem obtaining significant results was that recidivism was so rare. Obviously, the less likely an event is to occur, the harder it is to accurately predict."

But the important point is that once again the morjority of child abuse is relatively neglected in the debate.

Posted by: George | Feb 13, 2012 1:18:30 PM

virginia (Feb 10, 2012 1:49:25 PM, etc.):

It's not that I "like icky pervs so much". It's that I don't hate them. I don't hate them just and only because they did bad things. I don't believe they are terrible people because of their actions for some part of their lives. I also don't get off on harassing them and I have no need to try to make myself feel better than them. And I won't sacrifice American ideals just so I can hurt them. Those are just some of the differences between me and Registry Mongers and Terrorists.

I didn't take the time to read the article you linked to. I am sure that the woman did terrible things. I would not hire her to babysit my children. I also did not and never would depend on a Registry to even give me a little hint about whether a person was an acceptable babysitter. I've never needed Registries and never will. They aren't good enough for me.

I don't think many crimes deserve a sentence of LWOP. Certainly, sex crimes do not unless a person commits serious crimes more than once and after spending more than 5 years in prison (you know - people who aren't cured by a prison sentence). I don't think that most U.S. citizens appreciate exactly what it means to put a person in prison for years and that is part of what makes them disgusting pukes.

And do you really need a "domestic violence" Registry? Really? Or you will find yourself in a relationship with someone who may attack you? Only incompetent people need Registries. Why don't we just Register everyone? We can create a dossier on every person in the U.S. and then we can all rely on our nanny big governments to tell us who MIGHT do what. THAT is some funny crap and that would fit in perfectly for the vast majority of Americans these days who are stupid and immoral.

Posted by: FRegistryTerrorists | Feb 16, 2012 12:55:40 PM

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